CaseCase 1:07-md-01842-ML-LDA 1:10-cv-03228-ML -LDA Document Document 3622 10 FiledFiled 09/06/1109/06/11 PagePage 11 ofof 750 PageID PageID #: #: 48675 78 UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND IN RE: KUGEL MESH HERNIA REPAIR PATCH LITIGATION MDL Docket No. 07-1842ML REPORT AND RECOMMENDATION Lincoln D. Almond, United States Magistrate Judge Pending before the Court are Motions for Admission Pro Hac Vice ofAttorneys Michael Miller and David Dickens as Plaintiffs' counsel in sixty-six ofthe Kugel Mesh cases pending in this District.) These Motions were all filed by Attorney Neville Bedford who is acting as local counsel in these cases. ChiefJudge Lisi referred these Motions to me pursuant to 28 U.S.C. § 636(b)(1)(B) for preliminaryreview, findings andrecommended disposition. Inconnectionwith that referral, I sent a letter to Attorney Miller on July 28, 2011 seeking further information and documentation. Attorney Miller submitted a timely response to me on August 15, 2011. My letter and Attorney Miller's response are appended to this Report and Recommendation as Exhibits Band C, respectively, and incorporated by reference. Background These Motions were prompted by the death of Attorney David Andersen. Attorney Andersen had previously been admitted pro hac vice to represent the Plaintiffs inthese sixty-six Kugel Mesh cases. Attorney Andersen was an experienced trial attorney with The Miller Firm LLC located in Orange, Virginia. The current applicants for pro hac vice admission to succeed I A list ofthe cases subject to this Report and Recommendation is appended as Exhibit A. CaseCase 1:07-md-01842-ML-LDA 1:10-cv-03228-ML -LDA Document Document 3622 10 FiledFiled 09/06/1109/06/11 PagePage 22 ofof 750 PageID PageID #: #: 48676 79 Attorney Andersen are also with The Miller Firm. Attorney Michael Miller is the principal of the Firm, and Attorney David Dickens is an associate with the Firm.2 This review was prompted by Attorney Miller's disclosure on his pro hac VIce Application that he received a public reprimand in Mississippi in 2003 related to the unauthorized practice of law and related, reciprocal reprimands in Virginia and Maryland in 2005. Attorney Miller is licensed to practice in Virginia, Maryland, Pennsylvania and the District ofColumbia. He has been a licensed attorney in Virginia since 1979. He has also been admitted to practice before the Federal Court in the District ofColumbia, the Eastern District of Virginia, the District ofMaryland and the Eastern District ofPennsylvania. He represents that he has served as a member ofthe Plaintiffs' Steering Committees in the In re Zyprexa Products LiabilityLitigation,MDLNo.l:04-md-01596-JBW-RLM(E.D.N.Y.), theInreViagraProducts Liability Litigation, MDL No. 0:06-md-01724-PAM (D. Minn.), and the In re Avandia Marketing, Sales Practices and Products Liability Litigation, 07-md-01871-CMR (E.D. Pa.). (See Exhibit C, Attachments 5, 6 and 9). Attorney Miller also represents that he has been admitted pro hac vice in other state and federal cases and that he has never been denied pro hac vice admission other than in the Mississippi case which is discussed below. 2 Attorney Dickens' Application indicates that he was admitted to the Virginia Bar in 2006 and to practice before the Eastern District of Virginia in 2008. He did not disclose any prior discipline or other circumstances warranting further investigation. However, ifAttorney Miller is denied pro hac vice admission in these cases, there would be a question as to Attorney Dickens' qualification to independently handle these cases, given their number and complexity, which would have to be reviewed. See Local Rule Gen. 204(b)(2). Attorney Dickens appears to have only a few years' experience in practice according to both his Application and his biography on The Miller Firm website. -2- CaseCase 1:07-md-01842-ML-LDA 1:10-cv-03228-ML -LDA Document Document 3622 10 FiledFiled 09/06/1109/06/11 PagePage 33 ofof 750 PageID PageID #: #: 48677 80 The Mississippi situation was the subject ofan en bane 5-4 decision by the Mississippi Supreme Court in 2002, In re Edward A. Williamson and Michael J. Miller, 838 So.2d 226 (Miss. 2002), and the filing of an unsuccessful petition for writ of certiorari with the U.S. Supreme Court Miller v. McMillin, 540 U.S. 821 (2003). It arose out ofa medical malpractice action which "came directly to Miller's office by way of a 1-800 number advertised in Mississippi." 838 So.2d at 235. A local attorney filed the Complaint in Mississippi Circuit Court under his signature but Attorney Miller's name, office address and D.C. Bar number were typed under the local attorney's signature and information. Id. at 230. After defense counsel accused Attorney Miller of unauthorized practice of law, local counsel filed a Motion for Attorney Miller's pro hac vice admission. On September 12,2000, the Circuit Judge denied the pro hac vice Motion because Attorney Miller had appeared in more than five cases as pro hac vice counsel during the preceding twelve months and thus had violated Miss. Rule ofAppellate Procedure 46(b) and engaged in the unauthorized practice oflaw. In addition to denying Attorney Miller's request for pro hac vice admission, the Circuit Court found him in contempt for making "false representations to the court in the affidavits," "blatantly and willfully disobey[ing] the court's order barring his participation at the deposition [ofthe defendant doctor] by writing down questions and handing them to [local counsel],"3 and "repeatedly misspell[ing] the name ofthe defendant in [a prior] case, making it difficult for the circuit court to ascertain the correct facts" as to Attorney Miller's prior involvement in Mississippi cases. 838 So.2d at 233. 3 The specific circumstances ofthe deposition are setforth inthe Supreme Court's decision at 838 So.2d at 232- 233. -3- CaseCase 1:07-md-01842-ML-LDA 1:10-cv-03228-ML -LDA Document Document 3622 10 FiledFiled 09/06/1109/06/11 PagePage 44 ofof 750 PageID PageID #: #: 48678 81 The Supreme Court affmned the denial of Attorney Miller's request for pro hac vice admission. Itconcludedthat the totality ofAttorneyMiller'sinvolvementwithMississippi cases constituted the unauthorized practice oflaw. Id. at 237. Itrelied upon a combination offactors including the facts that Attorney Miller "procured clients in this state, investigated their claims, consulted with local counsel, and allowed his name to beplaced onthe pleadings in those cases." Id. at 238. The Supreme Court found that "[a]ll ofthese combined actions go beyond merely referring clients to other counselor merely serving in an advisory capacity." Id. As to the contempt finding, the Supreme Court reversed. Itdid not address the substance ofthe Circuit Court's fmdings. Rather, it concluded thatAttorney Miller's local counsel was not given notice that he might also be the subject ofa contempt finding and thus he was denied due process. Id. Also, the Supreme Court concludedthat, since the issue involved criminal contempt and the Circuit Judge had personal involvement, he was required to recuse as to both Attorney Miller and the local counsel. Id. Thus, the Supreme Court reversed the Circuit Court's judgments ofcontempt and remanded for a newhearing on the Motion for Contempt. Id. 4 Italso referred a copy ofits opinion to the Mississippi Bar. Id. On July 24, 2003, the Committee on Professional Responsibility ofthe Mississippi Bar found thatAttorney Miller engaged inthe unauthorized practice oflawinMississippi and issued a public reprimand. Subsequently, Attorney Miller was reciprocally reprimanded in 2005 by the Maryland and Virginia Bars for the same fmding that he engaged in the unauthorized practice oflaw in Mississippi. 4 In his Affidavit, Attorney Miller indicates that "[t]he Chief Judge of the District, when the matter was remanded, elected not to proceed with any further action on the reversed contempt issue." -4- CaseCase 1:07-md-01842-ML-LDA 1:10-cv-03228-ML -LDA Document Document 3622 10 FiledFiled 09/06/1109/06/11 PagePage 55 ofof 750 PageID PageID #: #: 48679 82 Discussion It is well settled that "[t]he decision to grant or deny a motion for pro hac vice admission is a matter within the discretion ofthe Court." Kampitch v. Lach, 405 F. Supp. 2d 210,215 (D.R.1. 2005). Such admission is "considered a privilege and not a right." Id. at 214. Under Local Rule Gen. 204(b), an applicant for pro hac vice admission must (1) "[b]e a member in good standing ofthe bar ofanother state and another federal district court and the bar in every jurisdiction in which the attorney has been admitted to practice;" and (2) "[e]stablish, to the satisfaction ofthis Court, that he or she is ofgood moral character and otherwise qualified and fit to be admitted pro hac vice before this Court." "The district judge to whom a case has been assigned shall have discretion to grant or deny motions for admission pro hac vice based upon the applicant's qualifications, character, past conduct and any other factors that bear on the applicant's fitness to practice in this Court." Local Rule Gen. 204(f)(1). Here, Attorney Miller does not report any disciplinary findings or pro hac vice denials other than the Mississippi situation. Although the allegations which resulted in the contempt finding are very troubling (particularly the alleged defiance ofthe Circuit Court's order not to participate inthe deposition), the contempt finding was reversed on substantive grounds related to the conduct ofthe hearing. In particular, the Supreme Court noted a due process violation arising out oflack ofnotice to Attorney Miller's local counsel and the improper involvement of the trial judge in the contempt hearing.